Anderson v. Michigan Cent. R. Co.
| Decision Date | 24 December 1895 |
| Citation | 65 N.W. 585,107 Mich. 591 |
| Court | Michigan Supreme Court |
| Parties | ANDERSON v. MICHIGAN CENT. R. CO. |
Error to circuit court, Bay county; Andrew C. Maxwell, Judge.
Action by Olive Anderson, administratrix of William Anderson deceased, against the Michigan Central Railroad Company, for damages for decedent's death. Judgment for plaintiff, and defendant brings error. Reversed.
H. H. & C. H. Hatch, for appellant.
Julian G. Dickinson, for appellee.
Plaintiff's intestate, William Anderson, was a brakeman in the employ of the defendant company on what is called the "Vanderbilt Branch." On the 16th of September, 1893, the train upon which the defendant was employed consisted of about 10 cars and a caboose. There were two Blue Line cars so called,-one ahead of the engine, and the other (the last car but one) being next the caboose or way car. When the train reached a point at the top of a grade, and was just beginning to increase its speed, the Blue Line car that was next the caboose ran off the track. The wheels ran along the ties for some distance, when the forward truck turned sidewise, and began to plow up the ties. The forward end of the Blue Line car was depressed, and the hind end raised so that it cleared the rail of the platform on the way car crushing Anderson, who was engaged in setting the forward brake of the way car; the engineer having, before this, whistled for brakes. The negligence complained of was that the company failed to maintain its track in reasonably safe condition. The testimony offered by plaintiff tended to show that the point in the track where the car left it was the central point in a reverse curve; that at the point where the two curves came together there was a depression in the south rail of the track; that up to this point, as one goes west, this rail had been the outside rail of the curve, and had been considerably higher than the north rail; a short distance further west it became the inside rail, and lower than the north rail. It is claimed that it should have shaded gradually from the superior elevation to the inferior elevation, but that in fact there was a sudden and sharp drop in the elevation of this rail, which had the effect of causing the car to leave the track. The plaintiff recovered a verdict, and defendant appeals. It is claimed by the defendant that those having charge of this track were fellow servants of the deceased, and defendant is not responsible for their neglect of duty, and, furthermore, if the duty to inspect and repair the track was the duty of the master, the circuit judge erred in his instructions to the jury, in that he, in effect, laid down a rule which would make the company an insurer of its track.
It appeared that prior to this accident there had been two other accidents at or near the place of the injury. One Burns was road master, and one McMahan assistant road master. The latter had authority to direct the sectionmen. After one of the prior accidents, McMahan sent the sectionmen to repair the track, but the defect in question was not remedied. Defendant requested the court to charge the jury that, if the car in question ran off the track because the south rail was not sufficiently elevated, the neglect to elevate and repair the same was the neglect of the section foreman in charge of that part of the track, and the section foreman being the fellow servant of the deceased, William Anderson, plaintiff cannot recover; and, further, that the undisputed testimony shows that the depression referred to was not the result of any fault in the construction of the track, but was caused by the ordinary use of the track, and that, there being such depression existing, it was the duty of the sectionmen to repair it; and, further, that the section or track men are fellow servants of the brakeman. If the master have any duty to inspect the premises to see that they continue in reasonably safe condition, or if, having notice of defects, he is bound to repair them, and cannot delegate the duty, and thus escape responsibility, it would seem that these instructions were inappropriate, for it would appear that McMahan having general charge of these tracks, and notice that an accident had occurred at the point where the injury resulted to deceased, it was his duty, as representative of the master, to see that the track was in proper condition. It is very clearly the law in Michigan, and most other jurisdictions, that the duty to provide a reasonably safe place for the employ� to perform his services rests upon the master, and that this duty is one that cannot be shifted or evaded by any attempt to delegate it to one who happens to be, as regards some of his duties, a fellow servant of the employ� whose safety is involved and to be provided for. This doctrine is enunciated and recognized in both opinions in Beesley v. F. W. Wheeler & Co. (Mich.) 61 N.W. 658, and in Dewey v. Railway Co., 97 Mich. 329, 52 N.W. 942, 56 N.W. 756, and is fully discussed by Mr. Justice Hooker in Balhoff v. Railroad Co. (decided at the present term) 65 N.W. 592. See, also, Van Dusen v. Letellier, 78 Mich. 492, 44 N.W. 572. This duty is also a continuing one, to the extent that it is provided that the master shall provide reasonably for the inspection, and, if need be, for the repair, of premises or appliances. 7 Am. & Eng. Enc. 830, in cases cited. In Tangney v. J. B. Wilson & Co., 87 Mich. 454, 49 N.W. 666, Mr. Justice Morse, speaking for the court, said: "It was the duty of defendant to furnish a safe place for plaintiff's work, and to furnish safe and suitable appliances to be used in and about the work, and its duty did not end here. It was also its duty to see that the appliances so furnished should be kept safe, so far as reasonable and proper watchfulness and inspection would enable it to do so. See, also, Bailey, Mast. Liab. p. 659, note; Roux v. Lumber Co., 94 Mich. 610, 54 N.W. 492; Railroad Co. v. Baugh, 149 U.S. 368, 13 S.Ct. 914; Railroad Co. v. Ward, 10 C. C. A. 166, 61 F. 927. The cases that are claimed to establish the rigid doctrine that sectionmen are in all cases fellow servants of the trainmen are considered and distinguished, perhaps sufficiently, by Mr. Justice Hooker, in Balhoff v. Railway Co. It will be found on examination that in the Austin Case, 40 Mich. 250, the doctrine was not necessary to the result reached. In the case of Loranger v. Railway Co. (Mich.) 62 N.W. 137, the opinion showed that the injury resulted from dumping ashes on the track by a fireman of the defendant. The ashes were fresh, and it is plainly to be implied that no fault of failing to inspect occurred; and well might the case have rested upon this ground, or upon the ground of contributory negligence. In Schaible v. Railway Co., 97 Mich. 319, 56 N.W. 565, the injury resulted, not from fault in the appliances, but from neglect in their use. Piquegno v. Railway Co., 52 Mich. 40, 17 N.W. 232, is a case in which Mr. Justice Cooley distinguishes between the responsibility of the company for obstructions to the track caused by use, and defects in the track itself.
The charge of the court was in part as follows: And again: "In answer to some of these requests, perhaps I should state that the railroad company should furnish a place for its employ�s to work that is reasonably safe." If the road was reasonably safe, as originally constructed, the duty of the company was to exercise reasonable watchfulness and inspection to see that it continued in a reasonably safe condition. Tangney v. J. B. Wilson & Co., supra. This is conceded by plaintiff's counsel to be the measure of the defendant's duty, but it is claimed that under the facts of the case this neglect of reasonable inspection conclusively appeared, and also that the jury could not have interpreted the charge above quoted as imposing on the company a duty to see, at its peril, that the track continued safe. We think the question of whether the defendant's employ�s used reasonable care in inspection was, under the proofs, a question for the jury, and we are not able to say that the other portion of the charge cured the error in this instruction. It is true, the court charged that there must be negligence on the part of the company, but he did not, otherwise than as shown by the quoted portions of the charge, define what that negligence must be. We are not prepared to say that the jury may not have been misled. Judgment reversed, and a new trial ordered.
The accident which resulted in the death of the plaintiff's intestate occurred on what was called the "Vanderbilt Branch" of the defendant's railroad, which was between 11 and 12 miles long. It was a logging road, and had been in use several years, doing a large amount of business. The business had fallen off, and the defendant was proceeding to dismantle the road. For this purpose one Sargent, the assistant road master, was gathering up the cars, preliminary to removing the track. He had picked up 9 or 10 cars, with which he was returning at the time of the accident. A Blue Line car was ahead of the engine, and another in front of the caboose,...
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